Club Terms of Service (TOS)
Last Modified: February 20, 2017
PLEASE READ THESE MEMBER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Member) and us (Appfire). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our services to you unless you agree to them. By using the Subscription Service, you are agreeing to these terms.
We periodically update these terms. If you are an active Member of the Subscription Service, we will let you know when we do via an email or in-app notification.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
• DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
• GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Subscription Service is provided. For example, you can find information on access and acceptable use. These terms apply to all of our products and service offerings.
• SUBSCRIPTION TERMS. Members subscribe to use our Subscription Service, and there are some fundamental terms that apply to each subscription. There are some differences between the different types of subscriptions, and here’s where you can find that detail.
• GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected many of the remaining legal terms that make up our Member Terms of Service.
"Agreement" means these Member Terms of Service and all materials referred or linked to in here.
"Appfire Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service.
“Billable Members” means those users for whom we charge fees as set forth on our Pricing Page.
"Billing Period" means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Free Services” means the Subscription Service made available by us to you on an unpaid trial or free basis.
"Member Information" means the name, email address, phone number, online user name(s), telephone number, and similar information of the Member, submitted by you within pages on the Subscription Service or uploaded by you to the Subscription Service.
"Member Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
"Member" means an individual who is authorized to use the Subscription Service for his or her own benefit or on account of his or her employer, and who has a unique user identification and password for the Subscription Service.
"Order" or "Order Form" means the Appfire-approved form or online subscription process by which you agree to subscribe to the Subscription Service. Most Orders are completed through our online payment process or via in-app purchase.
“Pricing Page” means http://www.Appfire.com/club.
"Sensitive Information" means credit or debit card numbers; including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Payment Card Industry Data Security Standards.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our knowledge base articles, member services responses, advice from our technical resources, custom scripts, configuration advice, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://www.Appfire.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
"Subscription Term" means the initial term for Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Appfire apps available from Atlassian’s Marketplace.
"Third-Party Sites" means third-party websites linked to, from or within the Subscription Service.
"Appfire", "we", "us" or “our” means Appfire Technologies, Inc., a Delaware corporation.
"You", "your" or “Member” means the person or entity using the Subscription Service and identified in the applicable account record, billing statement, online subscription process, or Order Form as the Member.
GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We might provide some or all elements of the Subscription Service through third party service providers.
2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Appfire portal (if additional features are made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Appfire portal.
3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance or emergency (unplanned) maintenance.
4. Fees and Payments
a. Subscription Fees — The Subscription Fee will remain fixed during the Subscription Term unless you: (i) increase your Billable Members, (ii) upgrade products or base packages, or (iii) subscribe to additional features or products, including additional Third Party Products. Your Subscription Fee will not decrease during the Subscription Term, even if there is a reduction in the number of Members. We will monitor or audit remotely the number of Members in the Subscription. This information will also be made available within the Appfire portal.
b. Fee Adjustments at Renewal — Upon renewal, your Subscription Fee will be adjusted to match the number of Members actually assigned at the end of your then-current Subscription Term.
c. Payment by credit card — If you are paying by credit card, you authorize us to charge your credit card for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
d. Payment against invoice — If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
e. Payment Information — You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Appfire portal. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
f. Sales Tax — All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, and you represent that you are registered for VAT purposes in your member state, all fees are exclusive of any VAT. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
5. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section below. To prevent renewal of a Subscription, you or we must give written notice of non-renewal and this written notice must be received no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term. If you decide not to renew, you may send the notice of non-renewal by email to email@example.com.
6. Use and Limitations of Use.
a. Acceptable Use — You will comply with our Acceptable Use Policy at http://legal.appfire.com/acceptable-use ("AUP").
b. Prohibited and Unauthorized Use — You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You agree not to use data from the Subscription Service in legal proceedings or otherwise as evidence.
You will notify us right away of any unauthorized use of your Members’ identifications and passwords or your account by following the instructions at http://justask.appfire.com.
c. No Sensitive Information — YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
d. Third-Party Sites and Products — Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
7. Subscription Term, Termination, Suspension
a. Term and Renewal — Your subscription period will be specified in your Order, and your subscription will automatically renew for the shorter of the subscription period, or one year. If you add products during the Subscription Term, the fees for these additional products will be pro-rated and they will renew along with your subscription, unless otherwise indicated in your Order.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then our standard pricing available on our Pricing Page will apply. If you use our Free Services, we will make the Free Services available to you free of charge until the earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
b. No Early Termination; No Refunds — The Subscription Term will end on the expiration date and you cannot cancel it before its expiration. We do not provide refunds if you decide to stop using the Subscription Service during your Subscription Term.
c. Termination for Cause — Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our Members. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts — We may suspend any Member’s access to the Subscription Service for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Appfire email send service that results in excessive bouncebacks, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
e. Suspension for Non-Payment — We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to the Subscription Service ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
f. Suspension for Present Harm — If your use of the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
g. Suspension and Termination of Free Services — We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
h. Effect of Termination or Expiration — Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Appfire Content, and if we request, you will provide us written confirmation that you have discontinued. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
1. Downgrades. You may downgrade your subscription at the start of your next renewal Subscription Term, as specified in the ‘Fee Adjustments at Renewal’ section above.
2. Modifications. We may modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
3. Member Support. Phone and Appfire portal (justask.appfire.com) support is included in your Subscription Fee. We accept Appfire portal support questions 24 Hours per Day x 7 Days per Week. Questions can be submitted through Appfire portal or by following the link at http://justask.appfire.com. We attempt to respond to Appfire portal support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
4. Retrieval of Member Materials. For Members, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Member Materials then in our possession or control. If we provide you with temporary access to the portal, we may charge a re-activation fee. We may withhold access to Member Materials until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Member Materials and may, unless legally prohibited, delete all Member Materials in our systems or otherwise in our control.
GENERAL LEGAL TERMS
1. Member Materials
b. Aggregate Data — We may monitor use of the Subscription Service by all of our Members and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Member Materials and/or identify you.
c. Safeguards — We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Member Materials. You consent to the processing of Member Materials in the United States.
2. Appfire’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service is protected by intellectual property laws, it belongs to and is the property of us or our licensors (if any), and we retain all ownership rights to it. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Appfire Content or the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed at http://legal.appfire.com/trademarks (which we may update at any time without notice to you) and you may not use any of these trademarks without our prior written permission.
We encourage all Members to comment on the Subscription Service, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service without payment or attribution to you.
3. Member’s Proprietary Rights. As between the parties, you own and retain all rights to your Member Materials. This Agreement does not grant us any ownership rights to your Member Materials. You grant permission to us and our licensors to use your Member Materials only as necessary to provide the Subscription Service to you and as permitted by this Agreement. If you are using the Subscription Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Discloser’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any of the Discloser’s Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose the Discloser’s Confidential Information to any third party (except our third party service providers), and (iv) limit access to the Discloser’s Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose the Discloser’s Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your name and company logo to our Member list and website.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your Member information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not, without our prior written consent, accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties — WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE OR APPFIRE CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE AND APPFIRE CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
b. No Indirect Damages — TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability — IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. IF YOU ONLY USE THE FREE SERVICES YOUR AGGREGATE LIABILITY IS LIMITED TO FIVE THOUSAND U.S. DOLLARS AND OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS. THESE LIMITATIONS DO NOT APPLY TO YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS.
d. Third Party Products — WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRDPARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
a. Amendment; No Waiver — We may update and change any part or all of these Member Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Member Terms of Service, the updated Member Terms of Service will be posted at http://legal.appfire.com/terms-of-service and if you are a Member, we will let you know via email or in-app notification. The updated Member Terms of Service will become effective and binding on the next business day after it is posted. When we change these Member Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Member Terms of Service periodically. If you do not agree with a modification to the Member Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Member Terms of Service prior to modification for the remainder of your current term. Upon renewal, the most recent Member Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure — Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted — Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. The intent of this paragraph is to shorten the applicable statute of limitations for any action, other than actions for nonpayment or breach of a party’s proprietary rights, to one (1) year after the cause of action has accrued.
d. Relationship of the Parties — You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws — We will comply with all U.S. state and federal laws in our provision of the Subscription Service and our processing of Member Materials. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, reexport, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Service by prohibited countries or individuals.
f. Severability — If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices — Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Appfire, Inc., 1500 District Avenue, Burlington, MA 01803.
To you: your address as provided in our Appfire Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
i. Assignment — You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third-Party Beneficiaries — Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services — This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority — Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Survival — The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Member Materials’, ‘Appfire’s Proprietary Rights’, ‘Member’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’ and ‘Miscellaneous’.
n. Precedence — In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.